PUBLIC PARTICIPATION IN ENVIRONMENTAL

ASSESSMENT

NOVEMBER 12, 2012

Overview

• Calgary Herald Editorial

• Rationale for Public Participation

• Public Participation under CEAA 2012

• Public Participation Alberta, Ontario

• Does Public Participation make for better decisions?

• Improving Public Participation

Is Public Participation essential to EA? Calgary Herald Editorial

• Why give taxpayer money to groups who oppose Northern Gateway?

• Aren’t laws requiring public participation and funding counterproductive, as well as an impediment to the regulatory process?

• “Democracy is cumbersome; government shouldn’t be finding ways to make it more so”

Calgary Herald Editorial: Assumptions and Issues

• Does the Harper government “ardently support” Northern Gateway? If true, is this unlawful under CEAA 2012 s. 7?

• What is the point of EA if government has already decided project will go forward?

• Editorial assumes Northern Gateway should be built (oil sands as “lifeblood of the provincial economy”)

• What evidence to support assumption?

Calgary Herald Editorial: Assumptions and Issues

• Should it matter for rights to participate or funding that publics participating in an EA oppose a project?

• Should it matter for providing funding that a participating groups is a chapter or branch of a U.S. organization?

• What rights do U.S. citizens/organizations have to participate in Canadian EAs?

Calgary Herald Editorial: Assumptions and Issues

• What about risks of spills from tankers, pipelines, greenhouse gas emissions from induced tar sands development?

• What about rights of First Nations?• Doesn’t the idea of an independent review

panel help to avoid pre-judging of issues on all sides?

• Should resources be available to allow balance in introducing and testing evidence?

Calgary Herald Editorial: Assumptions and Issues

• What is the nature of the Northern Gateway decision?

• Is it a “wicked” problem? (Frank Fischer -“no solutions, only temporary and imperfect resolutions”)

• Does it call for “communicative” not “instrumental” rationality? (John Dryzek)

• Is public participation fundamental to rational decision-making?

Rationale for Public Participation(Sinclair, Doelle)

• Individual empowerment• Ensure project meets public needs• Assigns legitimacy to project• Provides avenues for conflict resolution• Provides forum for local knowledge• Provides for more comprehensive

consideration of factors in decisions• Recognizes legitimate role of affected

public in decisions

Public Participation in CEAA 2012

• CEAA Preamble deleted• “AND WHEREAS the Government of Canada

is committed to facilitating public participation in the environmental assessment of projects to be carried out by or with the approval or assistance of the Government of Canada and providing access to the information on which those environmental assessments are based”

Public Participation in CEAA 2012Purposes

S. 4.(1) The purposes of this Act are . . .

(d) to promote communication and cooperation with aboriginal peoples with respect to environmental assessments;

(e) to ensure that opportunities are provided for meaningful public participation during an environmental assessment •Changes from CEAA: “timely and “throughout” deleted

Access to Information

• Registry established to facilitate public access to records, includes Internet site and project files s. 78.(1)

• Registry to be operated in a manner that “ensures convenient public access” s.78.(2)

• Copies of documents to be “provided in a timely manner on request” s. 78.(3)

Access to Information: Internet Site and Project Files

• Agency to “establish and maintain Internet site” available to public s.79.(1)

• Internet Site to include categories of records/information listed in s.79.(2)

• Project file to be established/maintained for every designated project s.80.(1)

• Project file to contain “all records produced, collected or received for the purpose of screening and EA s.80.(2)

Limits on Information Access Rights

• Registry must contain a record only if otherwise publicly available s.81.(1)(a) or

• Record under control of RA/Agency, and RA/Minister determines that record is disclosable under ATIA, RA/Minister “believes on reasonable grounds” “it is in public interest to disclose” because “required for the public to participate effectively” other than record prohibited under ATIA s. 81.(1)(b)

Public Participation Screenings

• Public may provide “comments respecting the designated project within 20 days after the posting of the notice” on the Internet site that includes a summary for the designated project s. 9.(c)

• Agency must consider public comments in screening s.10.(a)(iii)

Public Participation Environmental Assessment

• RA to publish notice of commencement of EA on Internet Site s.17

• EA to take into account “comments from the public” s.19.(1)(c)

• RA to “ensure that the public is provided with an opportunity to participate in the environmental assessment” s.24

• RA to post draft report on Internet site, take into account public comments on draft report s.25

Public Participation in Panel Reviews

• Public concerns a factor to be considered by Minister in determining public interest in referring project to review panel s.38.(2)(b)

Public Participation Panel Reviews

• Review panel to ensure that “information it uses when conducting the EA is made available to the public” s.43.(1)(b)

• Review panel to hold “hearings in a manner that offers any interested party an opportunity to participate in EA” s.34.(b)

• Review panel to prepare report including summary of public comments s.43.(1)(d)

• Hearings to be public subject to exceptions s. 45.(1)

Public Participation Funding Requirement

• Agency required to “establish participant funding program to facilitate the participation of the public in the environmental assessment of designated projects referred to a review panel” s.57

• NEB, CNSC required to establish similar program for their projects s. 58

• No funding requirement for substituted projects s.58.(2)

Ontario Environmental Assessment Act

• Proponent duty to consult with “such persons as may be interested” in preparing terms of reference and environmental assessment s.5.1

• Public notice, inspection, comments on proposed terms of reference s. 6.(3.1), (3.5),(3.6)

• Public notice, inspection, comments on environmental assessment s.6.3, 6.4

Ontario Environmental Assessment Act

• No participant funding

• Hearings are rare, exemptions are frequent

Alberta Energy Resources Conservation Board

• Quasi-judicial body,full-time members

• Evidentiary rules, full opportunity to introduce and test evidence

• No intervenor funding, except to local intervenors after hearings based on test of utility of intervention

• Commitment to public participation suspect: has carried security checks on intevenors

Does Public Participation make for better decisions?

• A “qualified yes” (Rutherford, Campbell)

• Public role in review panels “for the most part, effective” “positive impacts on the outcome of the EA”

• Indicators:– References to public input in reports– Procedural changes prompted by public– Public scrutiny led to recommendations or

changes, changes by proponent

Impediments to Public Participation in Panel Reviews

• Limits on participant funding (funding and resources are scarce)

• Poorly developed processes with short timelines

• Narrow project scope

• Conclusion: More panel reviews please!

(Rutherford, Campbell)

Improving Public Participation (House Environment Committee)

• “Public participation during EAs was widely acknowledged as part of process for achieving a social licence to operate”

• “Public participation in EA is therefore a necessary tool in enabling projects”

• “Committee recommends that the federal government develop guidelines for selection of panel members” (in order to improve transparency during public participation)

Improving Public Participation (Sinclair, Doelle)

• Integrate public participation throughout process

• Allow for more collaborative techniques of participation (ADR, mediation)

• Governments (not proponents) responsible for public participation

• Accountability for how public input used

• Government ensure that the public has basic tools to serve as guardian